City of Mitchell v. Dakota Central Telephone Co.

28 S.D. 168 | S.D. | 1911

WHITING, J.

This cause is before the court upon a petition for rehearing. The opinion, concerning which a rehearing is sought, is reported in 27 S. D. 509, 131 N. W. 1090. In such opinion it was said: “If appellant desired, upon retrial in the lower court, to change the- issues, it should have asked this court to return the cause without a direction that judgment be entered in favor of plaintiff. No such modification was asked for, and no rehearing sought.”

Appellant, upon this petition for rehearing, calls attention to an inaccuracy in the above statement, and under the record upon the former appeal it is clear that in our opinion upon this appeal we should have stated: “If appellant desired, upon retrial in the lower court, to change the issues and raise the question thereafter sought to be raised by the amendment allowed by the trial court, it should have requested this court to return the cause without a direction that judgment be entered, in order that it might ask for the above amendment. No modification of such judgment for such purpose was asked, and no rehearing was sought on that ground.” The record upon the former appeal shows that a petition seeking a modification of our decision was filed; but it was based upon grounds other than a desire to amend the pleadings, and was, in our opinion, without merit.

It is therefore clear that, while the statement above quoted was inaccurate, yet the variance was immaterial, and furnishes no grounds whatever for the granting of a rehearing upon this appeal; and such rehearing is refused.